Opinion
No. 106 611.
2012-07-20
STATE of Kansas, Appellee, v. Misty Dawn WISE, Appellant.
Appeal from Shawnee District Court; Janice D. Russell, Senior Judge. John A. Fakhoury, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Janice D. Russell, Senior Judge.
John A. Fakhoury, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Misty Dawn Wise appeals her conviction of domestic battery, challenging the sufficiency of the evidence and arguing she was deprived of her right to a jury trial. Concluding that the evidence was sufficient and that Wise failed to sustain her burden to show an absence of jury trial waiver, we affirm her conviction.
Factual and Procedural Background
On October 29, 2010, Wise's husband, Jay Mannen, bailed her out of the Shawnee County jail. The two left the jail on foot and proceeded to argue about whether Wise would repay Mannen for the money he had just spent. Mannen closely followed Wise for several blocks, and the two repeatedly yelled and screamed at each other. A fight ensued, the details of which are at issue in this case. After the fight, Mannen called 911 and told the operator that Wise “beat the shit out of me.” He also continued to follow Wise even though the 911 operator told him to stop.
Upon responding to the 911 call, police took a photograph of Mannen's face, and then recorded Mannen's oral statement confirming that he and Wise argued over the money, and that she punched him once on his chin or right side of his face, grabbed his neck, and scratched him in the face. Mannen's written statement included the following:
“Coming down Washburn [Street] I was following Misty 5 feet behind asking her to call her dad for my money she promised. She then turned [and] punched me once in the mouth. I fell down she grabbed my neck & scratched my face. Pushed at me saying mean things and ran down 8th Street. I called 911 and followed behind her until the police arrived.”
The State charged Wise with two counts of domestic battery in violation of K.S.A.2010 Supp. 21–3412a. Wise, who was convicted in 2006 of the same offense, faced a 1–year maximum term of imprisonment. Based on the record submitted for appellate review, the district court did not advise Wise she had a Sixth Amendment right to a jury trial. The record, however, references three recorded court proceedings at which Wise may have been advised of this right.
At a bench trial, Mannen largely recanted his previous oral and written statements about the batteries and suggested his statements to police were not accurate. The district court found Wise guilty of the second count of domestic battery, reasoning:
“And I base that—not particularly upon the testimony of Mr. Mannen, which is confused at best, but upon the picture. The picture shows that he's got scratches on his face, and the picture fits with the statement that he gave to the police on the day of the incident. He said that she grabbed [his] neck and scratched [his] face. The picture corroborates the statement that he gave at the time of the incident, even though he has now recanted that testimony .”
The court sentenced Wise to 12 months of probation, with an underlying 90–day jail sentence. The court suggested it ordered Wise to the minimum underlying sentence permitted by statute because Mannen “created some degree of provocation” for Wise's actions.
Wise filed a timely notice of appeal.
Was There Sufficient Evidence to Support Wise's Conviction?
Wise challenges the sufficiency of the evidence to support her conviction, arguing that Mannen's inconsistent statements and confusing testimony cannot support her conviction. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). In making such a determination, an appellate court does not weigh conflicting evidence, evaluate witnesses' credibility, or redetermine questions of fact. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). Rather, this court looks only to the evidence which supports the verdict, and if the essential elements of the charge are supported by any competent evidence, the conviction must stand. State v. Kuykendall, 264 Kan. 647, 651, 957 P.2d 1112 (1998).
K.S.A.2010 Supp. 21–3412a(a)(2) defines domestic battery as “intentionally causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.”
After review of the entire record, we conclude that the evidence was sufficient to support the conviction. The district court largely relied on Mannen's written statement about the fight and the photograph of Mannen taken immediately thereafter, which corroborated his assertions that Wise battered him. In Mannen's written statement and his oral statements he unequivocally declared that Wise punched him in the mouth—which caused him to fall to the ground—and she then grabbed his neck and scratched his face. The photograph, when viewed in a light most favorable to the State, corroborates Mannen's statements to police that Wise scratched him in the face. Similarly, Topeka Police Officer Jared Strathman also testified Mannen had scratch marks on his face and fresh grass stains on his jeans. And, contrary to Wise's assertion, the district court did not disregard Mannen's sworn testimony altogether, for the court sentenced Wise to the minimum underlying sentence permitted by K.S.A.2010 Supp. 21–3412a(b)(2) apparently because, as the court observed, Mannen helped provoke Wise's attack.
At least one Kansas case has addressed a situation factually similar to the present case, in which a domestic violence victim recanted at trial his or her previous statements to police. See State v. Rohrer, No. 105,467, 2011 WL 5143077, at *1–3 (Kan.App.2011) (unpublished opinion). There, this court found substantial competent evidence existed to affirm the defendant's domestic violence conviction even though the victim testified at trial that she did not remember anything from the day of her attack. 2011 WL 5143077, at * 1–3. In reaching this conclusion, this court largely relied on oral and written statements from the victim to police shortly after the attack, as well as circumstantial evidence testified to by a police officer who responded to the attack. 2011 WL 5143077 at *1–3. See also State v. Scott, 271 Kan. 103, 107, 21 P.3d 516,cert. denied534 U.S. 1047 (2001) (“A guilty verdict in a criminal case will not be disturbed on appeal if there is substantial evidence even though the evidence is entirely circumstantial.”). Similarly, other Kansas cases have affirmed domestic violence convictions based largely—if not exclusively—on circumstantial evidence. See State v. Howard, No. 103,287, 2010 WL 3732101, at *1 (Kan.App.2010) (unpublished opinion) (affirming defendant's domestic battery conviction on circumstantial evidence even though the victim testified he and his girlfriend—his assailant—were just “horseplaying” and she was not angry with him); State v. Kelly, No. 103,092, 2010 WL 4157066, at *1 (Kan.App.2010) (unpublished opinion) (affirming defendant's domestic battery conviction despite conflicting testimony on whether the victim was behaving aggressively toward his assailant before the battery occurred).
After review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Did Wise Effectively Waive Her Sixth Amendment Right to Trial by Jury?
Next, Wise asserts that she was “never apprised of her right to a trial by jury, and that she also never provided a waiver of that right to the court, either in writing or orally.” Determining whether a defendant effectively waives his or her right to a jury trial requires constitutional interpretation, and therefore appellate review is unlimited. State v. Duncan, 44 Kan.App.2d 1029, 1037, 242 P.3d 1271 (2010).
A defendant who faces a potential term of imprisonment greater than 6 months has a constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution and Section 5 of the Kansas Constitution Bill of Rights. See State v. Sykes, 35 Kan.App.2d 517, 523, 132 P.3d 485,rev. denied 282 Kan. 795 (2006). Although a defendant may waive this right, such waiver must be knowingly and voluntarily made. See State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). The constitutional nature of this right necessitates that a waiver “be strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury.” 216 Kan. at 589. Moreover, a waiver of this right will not be presumed from a silent record. 216 Kan. at 589. Thus, a valid waiver ultimately requires that the defendant “must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.” 216 Kan. at 590; see also State v. demons, 273 Kan. 328, 338–39, 45 P.3d 384 (2002) (citing Irving for the aforementioned proposition).
Although Wise did not preserve her challenge to the deprivation of a jury trial before the district court, she correctly observes she may nonetheless appeal the issue to prevent a denial of fundamental rights. See, e.g., State v. Johnson, 46 Kan.App.2d 387, 397, 264 P.3d 1018 (2011), rev. denied. 293 Kan. ––––, (2012). And, as this court has observed, “There is no more fundamental right in the United States than the right to a jury trial.” State v. Larraco, 32 Kan.App.2d 996, 999, 93 P.3d 725 (2004).
Undeniably, Wise had a constitutional right to a jury trial because she faced a maximum penalty of 1 year in jail for her domestic battery charge. Her case, however, boils down to whether the record submitted for appellate review is adequate to conclude that the district court neither informed Wise of nor obtained a waiver from her of that right to a jury trial. The State argues Wise neglected to include records of three recorded pretrial proceedings that could have refuted the claim of error now argued on appeal. The appearance docket describes these proceedings as follows:
• Arraignment, held November 10, 2010: “Defendant waives formal arraignment and stands silent, the court enters a plea of not guilty.... Bond modified to no violent contact.” A court reporter was present at this hearing.
• Withdrawal of counsel hearing, held May 11, 2011: The court permitted Wise's counsel to withdraw and appointed a new attorney, who represented Wise both at trial and in this appeal. The court digitally recorded this hearing.
• Hearing at which the court set Wise's case for trial, held June 1, 2011. Although Wise was not present for the hearing, the State argues the fact that her case “was set over for a court trial suggests that a waiver of jury trial had already been obtained prior to that point in the case.” The court digitally recorded this hearing.
Two other proceedings are also of note. Wise made her first appearance on May 4, 2011, and the appearance docket indicates another appearance on May 31, 2011. Neither of these proceedings, however, was recorded. Also, the record does not include any reference to a preliminary hearing. See State v. Bannon, 45 Kan.App.2d 1077, 1082, 257 P.3d 831,rev. denied 293 Kan. ––––, (2012) (K.S.A. 22–2902 does not entitle a defendant charged with a misdemeanor to a preliminary hearing).
The State argues that it was Wise's burden to designate a record which affirmatively shows prejudicial error in the trial court and without such a record this court must presume the trial court's action was proper, citing State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). We agree. This rule is fundamental to appellate practice in Kansas, and our Supreme Court has not declined to apply it in a host of circumstances. See, e.g., State v. Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006). Given at least three proceedings where Wise may have been advised of and may have voluntarily waived her right to a jury trial, she was obligated to request transcripts and otherwise include in the record on appeal transcripts of each of these proceedings. In the absence of her sustaining this burden, we are not inclined to presume that the missing transcripts would reflect silence as to her right to a jury trial.
Wise argues, however, that we should not strictly apply the rule under these circumstances, citing Duncan, 44 Kan.App.2d at 1037, where a panel of our court held that despite a silent record as to waiver, the defendant met his burden to designate a record establishing a high probability that he never waived his right. We distinguish Duncan because there neither party asserted that Duncan failed to include in the record on appeal any known evidence that might have proven his waiver. The panel noted that proof of a negative fact does not require a defendant to irrefutably demonstrate the fact does not exist, the defendant only needs to show that his or her version if highly probable. But in Duncan, there were no missing transcripts, only an indication that proceedings occurred that were not recorded.44 Kan.App.2d at 1040. Here, by comparison, there were at least three proceedings that were indeed digitally recorded or had a court reporter present, but the record on appeal contains no transcripts from any of these proceedings. These proceedings should have been made a part of the record by Wise.
Wise has thus failed in her burden to designate a record to demonstrate that she was neither apprised of nor waived her right to a jury trial. We note that if we were to conclude otherwise, that ruling would support if not provoke similar claims based merely upon a defendant's deliberate omission of key transcripts from district court proceedings. We decline to encourage such conduct.
Affirmed. MALONE, J., concurring.
I concur with the majority that there was sufficient evidence to support the domestic battery conviction. I also concur with the majority that Misty Dawn Wise failed to sustain her burden of showing an absence of a jury trial waiver, but only because Wise failed to provide a transcript of the arraignment in the record on appeal. The arraignment is an important hearing in which the district court accepts the defendant's plea and initially schedules the case for either a bench trial or a jury trial. It is reasonably possible that Wise effectively waived her constitutional right to a jury trial in open court at the arraignment. The burden was on Wise to include a transcript of the arraignment in the record on appeal in order to establish that she did not effectively waive her right to a jury trial at this hearing.
But we know that Wise did not waive her right to a jury trial at the scheduling hearing on June 1, 2011, because the appearance docket reflects that she was not present for the hearing. And my experience leads me to conclude that it is highly improbable that Wise waived her right to a jury trial at the hearing on May 11, 2011, where the district court permitted her counsel to withdraw and appointed a new attorney. If Wise had failed to include only the transcripts of these two hearings in the record on appeal, I would conclude that she had met her burden of establishing a high probability that she did not effectively waive her right to a jury trial on the domestic battery charge. See State v. Duncan, 44 Kan.App.2d 1029, 1040–41, 242 P.3d 1271 (2010).